Wyoming lawmakers have proposed a new bill that, if passed, would nullify any federal restrictions on guns, threatening to jail federal agents attempting to confiscate guns, ammunition magazines or ammunition.

The bill – HB0104 – states that “any federal law which attempts to ban a semi-automatic firearm or to limit the size of a magazine of a firearm or other limitation on firearms in this state shall be unenforceable in Wyoming.”

Though I gotta say I really like what Wyoming is proposing and I hope it passes and see versions of it passing in other states.

JohnM

January 10, 2013, 04:29 PM

We're an independent bunch out here and we really don't like being pushed around by the Federal Government.

Solo

January 10, 2013, 05:13 PM

Marijuana, guns, gay marriage... it's certainly going to be an interesting time we live in.

Phatty

January 10, 2013, 05:23 PM

If Wyoming passed the proposed legislation it would be purely symbolic because a state cannot nullify a federal law.

If Wyoming was really serious about fighting any kind of weapon ban by the federal government, it would be much more successful if it set up an official Wyoming militia in which all citizens are members and expected to own and maintain suitable "assault" weapons for the defense of the state. Then Wyoming could sue the federal government and claim that the federal ban is preventing it from maintaining a state militia.

Even better would be a law that allowed any qualifying (i.e. age, no criminal background, etc.) person to take an oath and be made deputies in some kind of state citizen police force. That way they would immediately qualify in the "exceptions" portion of a federal gun ban.

JohnnyK

January 10, 2013, 05:25 PM

don't mess with Texas! or Wyoming!

Ed N.

January 10, 2013, 05:34 PM

Even better would be a law that allowed any qualifying (i.e. age, no criminal background, etc.) person to take an oath and be made deputies in some kind of state citizen police force. That way they would immediately qualify in the "exceptions" portion of a federal gun ban.

It could be even easier than that. Treat it like the unorganized militia. The state passes a law, or an amendment to the state constitution, that says that every citizen of the state is a law enforcement deputy in the unorganized division of the state police and can be summoned to temporary duty by the governor.

Don't hold your breath...

CoRoMo

January 10, 2013, 05:40 PM

While our neighbor to the north is operating with independent maturity, my state is about to drown at the rate that it is gulping down the federal koolaid! :banghead:

If Wyoming passed the proposed legislation it would be purely symbolic because a state cannot nullify a federal law.

If Wyoming was really serious about fighting any kind of weapon ban by the federal government, it would be much more successful if it set up an official Wyoming militia in which all citizens are members and expected to own and maintain suitable "assault" weapons for the defense of the state. Then Wyoming could sue the federal government and claim that the federal ban is preventing it from maintaining a state militia.

Even better would be a law that allowed any qualifying (i.e. age, no criminal background, etc.) person to take an oath and be made deputies in some kind of state citizen police force. That way they would immediately qualify in the "exceptions" portion of a federal gun ban.

We always love it when a bunch of outsiders tell us hicks how we should do things.

P.O.2010

January 10, 2013, 05:48 PM

"If Wyoming passed the proposed legislation it would be purely symbolic because a state cannot nullify a federal law."

The problem with this line of reasoning is that the United States Constitution was not designed to be a one way street. High ranking Federal Officials routinely decide what their powers are and what their jurisdiction is regardless of what the Constitution demands and the courts rubber stamp their overreach. When individual citizens or State governments protest they're told to sit down and shut up or face a loss of federal funding with the unstated threat of being subject to armed intervention always looming in the background. Our Republic was based on the idea that there would be a separation of powers between the three branches of the Federal government and that the Federal government would have a very limited role while the States carried out the lion's share of day to day governing. That concept has been turned on its head.

What's likely going to happen in States like Wyoming is that when and if the Federal government decides to implement a new ban or restrictions on so-called assault weapons or handguns it will receive no help from local authorities. Sheriff's Deputies and Police Officers won't share intelligence, participate in raids or so much as open the door for Federal Agents. That will make enforcing the law very difficult. If you combine that with a civilian population hostile to the law enforcement of said law will become nearly impossible. If people refuse to serve Federal Agents in restaurants, to lodge them in hotels, to sell them equipment or repair their vehicles the Feds will have a very hard time simply operating on a day to day basis. Basically think of the reaction to the Fugitive Slave Law in many northern states prior to the Civil War when U.S. Marshals trying to return black Americans to a condition of bondage had absolutely no support and often faced violent mobs.

Wyoming's proposed law is far from symbolic if the People of Wyoming and their elected Representatives are serious about resisting these proposed laws.

robertn

January 10, 2013, 05:50 PM

If Wyoming passed the proposed legislation it would be purely symbolic because a state cannot nullify a federal law.

If Wyoming was really serious about fighting any kind of weapon ban by the federal government, it would be much more successful if it set up an official Wyoming militia in which all citizens are members and expected to own and maintain suitable "assault" weapons for the defense of the state. Then Wyoming could sue the federal government and claim that the federal ban is preventing it from maintaining a state militia.

Even better would be a law that allowed any qualifying (i.e. age, no criminal background, etc.) person to take an oath and be made deputies in some kind of state citizen police force. That way they would immediately qualify in the "exceptions" portion of a federal gun ban.
Basically CO and WA did with their dope smoking rules... so in my eyes, states are already doing it.

Razor_J

January 10, 2013, 06:30 PM

If push comes to shove, I guess I know what state I'm moving too. Hey Wyoming do you have room for a liscensed, clean record sporting, organic chemistry degree holding, prospective medical school student?

tulsamal

January 10, 2013, 06:43 PM

So far it is just a proposed bill. Like all the other things that get proposed all the time. Most don't go anywhere. If they actually pass it and the Gov signs it... that would be great!

Okies are libertarians. If Wyoming really does go that route... I would expect to see something like that here.

Gregg

Trent

January 10, 2013, 06:51 PM

We always love it when a bunch of outsiders tell us hicks how we should do things.

It it just a bunch of hicks, or is there a call for high end server architecture stuff in Wyoming? I build ultra-high available server architecture (think hot-hot datacenters, not active/passive).

Wouldn't mind a change of scenery if I could find work.

:)

Frank Ettin

January 10, 2013, 09:21 PM

"If Wyoming passed the proposed legislation it would be purely symbolic because a state cannot nullify a federal law."

The problem with this line of reasoning is that the United States Constitution was not designed to be a one way street. High ranking Federal Officials routinely decide what their powers are and what their jurisdiction is regardless of what the Constitution demands and the courts rubber stamp their overreach....Nonetheless, the Founding Fathers provided in the Constitution (Article VI, Clause 2, emphasis added): This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby; any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Founding Fathers also provided in the Constitution (Article III):Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish....

Section 2. The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,...

Trent

January 10, 2013, 09:57 PM

The Federalist papers also talk (at GREAT length) about States Rights, and the Right of the States to tell the Federal government to go fly a kite. Those papers were about this very thing; Federal control, vs. a Confederacy of X number of sovereign states working together as allies.

An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States. This exclusive delegation, or rather this alienation, of State sovereignty, would only exist in three cases: where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union, and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally CONTRADICTORY and REPUGNANT.

Backed by the Constitution of the United States, itself:

AMENDMENT X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

This all works quite well in conjunction with this little excerpt, where Madison makes one of the few references in the Federalist papers to the right to keep and bear arms:

"To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of."

Federalist paper #46, January 29th, 1788, author James Madison.

Clearly it was never meant as a right that even the States themselves could restrict, let alone the Federal government.

The Federal government has no right (according to the Constitution) to restrict high capacity magazines, or assault weapons, or any other arm; EXCEPTING their trade in Interstate Commerce. It is up to the individual STATES to decide that matter, as long as it doesn't conflict with Amendment 2.

Which again has been affirmed in US Vs. Miller

The significance of the militia, the Court continued, was that it was composed of “civilians primarily, soldiers on occasion.” It was upon this force that the States could rely for defense and securing of the laws, on a force that “comprised all males physically capable of acting in concert for the common defense,” who, “when called for service . . . were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”6 Therefore, “[i]n the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than 18 inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well– regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”7

Frank Ettin

January 10, 2013, 10:17 PM

The Federalist papers also talk (at GREAT length) about States Rights, and the Right of the States to tell the Federal government to go fly a kite. Those papers were about this very thing; Federal control, vs. a Confederacy of X number of sovereign states working together as allies....The Federalist Papers aren't law. They were essays written by several authors for the express purpose of encouraging ratification of the Constitution and should be read and understood in that context.

This all works quite well in conjunction with this little excerpt, where Madison makes one of the few references in the Federalist papers to the right to keep and bear arms:

"To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of."

Federalist paper #46, January 29th, 1788, author James Madison.

Clearly it was never meant as a right that even the States themselves could restrict, let alone the Federal government.Nonetheless, the Supreme Court ruled in 1833 (Barron v. Baltimore, 32 U.S. (7 Pet.) 243) that the Bill of Rights did not apply to the States. And in 1876 the Supreme Court ruled (United States v. Cruikshank, 92 U.S. 542 (1876)) specifically that the Second Amendment did not apply to the States. Cruikshank remained the law until McDonald applied the Second Amendment to the States through the 14th Amendment.

Grmlin

January 10, 2013, 11:05 PM

Any room for a retired Marine and his wife in Wyoming?

P.O.2010

January 10, 2013, 11:30 PM

I understand your point, however my point is this:

Before the laws of the United States can be "the supreme Law of the Land" they must be made in pursuance to the Constitution. The laws of the United States cannot be contrary to the Constitution or in spite of the Constitution. The Constitution of the United States is the supreme law of the land and is superior to the United States Code, the Code of Federal Regulations, the Uniform Code of Military Justice and all other Federal laws, rules, statutes, ordinances and regulations. The President, the Congress and the Supreme Court are only permitted to exercise a set number of powers under a set number of circumstances. What we have today is the exact opposite, the tail wagging the dog so to speak. The Federal government is exercising dominion in a number of areas where it has no legal right whatsoever to act. The basis of this dominion is the threat, both express and implied, that any State or locality which resists will be ruined economically or physically destroyed. That's the basis of the Federal government's powers, not moral persuasion, not law, but rather naked, illegitimate force. The danger here is that the more power the Federal government seizes the harder it becomes to stop the progression.

The argument made by those in Congress, the White House and the Federal Judiciary that want to prohibit the civilian ownership of semi-automatic rifles and handguns is not that they have the authority under the Constitution to do so but rather than they have the power to do so. Legitimate authority and power are not always one in the same and they are in fact not the same in this case. The argument in this case is "We have the power, therefore we have the right to do as we please." In other words, "Turn in your guns or we will imprison you. Resist imprisonment and you will be killed." That type of behavior is not consistent with our Constitution. Congress has no more right to order me to turn in or register a semi-automatic rifle than I have to physically discipline my neighbor's child. I have no authority over my neighbor's child and Congress has no authority to require the registration or confiscation of my privately owned firearms. If I go across the hall and smack my neighbors child across the face I've usurped the right to discipline him but the fact that I've successfully assaulted him and cowed his parents doesn't make my actions legitimate.

Gangsterism under the guise of government is still gangsterism no matter how one chooses to dress it up. Too many people confuse what the Federal government has the power to do with what it has the right to do.

Frank Ettin

January 11, 2013, 01:01 AM

...Before the laws of the United States can be "the supreme Law of the Land" they must be made in pursuance to the Constitution. The laws of the United States cannot be contrary to the Constitution or in spite of the Constitution....But who do you think decides whether a law is "pursuant" to the Constitution? You do not. That is, as the Constitution itself has provided and as the law in this nation has evolved, the province of the federal courts.

Your views may define your political actions, and legislative bodies, to the extent they have sufficient political support, may act within the limits of their authority. But when there is finally a disagreement regarding whether or not something is constitutional, that disagreement will be resolved by the federal courts.

zxcvbob

January 11, 2013, 01:44 AM

Ultimately it is decided by the states. The 10th Amendment modifies both the Supremacy Clause and Article 3 (just as the 2nd Amendment modifies the Commerce Clause, whether the USSC likes it or not)

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Frank Ettin

January 11, 2013, 01:54 AM

Ultimately it is decided by the states. The 10th Amendment modifies both the Supremacy Clause and Article 3 (just as the 2nd Amendment modifies the Commerce Clause, whether the USSC likes it or not)...Can you cite competent legal authority (i. e., a U. S. Supreme Court ruling to that effect) for that balderdash? If not, your opinion means nothing.

zxcvbob

January 11, 2013, 02:03 AM

You know that it's true; as a lawyer you are just not allowed to admit it.

And it looks like it might be tested in Wyoming soon, since the feds haven't taken the 10th Amendment bait with medical marihuana*, or Montana or Tennessee's firearm freedom laws. So Colorado and Wyoming are upping the ante with marihuana and firearms, respectively.

(*I'm spelling it this way for a historical reference)

Frank Ettin

January 11, 2013, 02:16 AM

You know that it's true; as a lawyer you are just not allowed to admit it...As a lawyer I know absolutely that it is not true. It's your claim and therefore your burden of proof. If you can not properly support it, it's not worth anyone's consideration.

...And it looks like it might be tested in Wyoming soon, since the feds haven't taken the 10th Amendment bait with medical marihuana*...And since you don't appear to be very familiar with actual law (as opposed to your fantasies), the core marijuana issue has already been resolved in the courts against the States and in favor or the federal government's authority to regulate marijuana. See Gonzales v. Raich, 545 U.S. 1 (2005).

DMF

January 11, 2013, 02:41 AM

Ultimately it is decided by the states. The 10th Amendment modifies both the Supremacy Clause and Article 3 (just as the 2nd Amendment modifies the Commerce Clause, whether the USSC likes it or not)

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."What are you babbling about? Judicial power is certainly delegated to the US by the Constitution.

Article III:
"The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. . .

. . . The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. . ."

The 10th Amendment does nothing to change Article III.

tulsamal

January 11, 2013, 10:46 AM

And since you don't appear to be very familiar with actual law (as opposed to your fantasies), the core marijuana issue has already been resolved in the courts against the States and in favor or the federal government's authority to regulate marijuana. See Gonzales v. Raich, 545 U.S. 1 (2005).

I'm absolutely not going to get into an argument about "the law" since I'm unarmed in such a conflict! However... is the law the issue or the enforcement of the law? That's where I think the legalization of pot (among other things) is relevant. I agree that the law in Colorado doesn't overturn or supersede the Federal law saying pot is illegal. But people in Colorado can go to a store and buy it. They can walk around with it and not worry about being arrested by state or local police. And the Feds aren't sending in truckloads of Federal agents to arrest people for violating the Federal law.

Doesn't it remind you of some parts of the country during Prohibition? The law was so deeply unpopular in some areas that the local law enforcement refused to participate. The Feds were on their own. In a more limited way, same thing happened with the 55 mph national speed limit. At first it was being enforced. But as time went on, the popular opinion went against it. And the state and local police just kept increasing the "tolerance" level. In some areas of the country, you had to be driving over 70 mph to have any real fear of getting a ticket. Despite all kinds of threats from the Feds about holding back Federal highway money.

Since I don't see much hope in individuals "fighting back" against LEO's in a worst case scenario, I'm much more inclined to support resistance by the state. By myself.... I can be portrayed in the media as some lonely and crazy nut. But if we stand up as an entire state, that's a whole different thing.

Gregg

Phatty

January 11, 2013, 11:52 AM

States are under no obligation to help the federal government enforce federal laws or provide any cooperation at all. What States cannot do is put up any hurdles to prevent the federal government from enforcing federal law.

The marijuana legalization is confusing to a lot of people. I'll use Colorado as an example. Back in the day, Colorado had a state law that made possession of marijuana illegal. Possession of marijuana also happened to be a violation of federal law. So if you got busted with marijuana in Colorado, you could get prosecuted under either federal or state law (but not both for the same incident). Based on the simple fact that there was a lot more local Colorado police officers than federal agents in Colorado, and the few federal agents there were primarily focused on larger crimes, the vast majority of marijuana prosecutions were handled on the state level.

Fast foward to today, and Colorado has repealed its law making marijuana possession illegal (ignore the various qualifications of the law for now). So if you are in possession of marijuana in Colorado, you are not breaking a state law any longer, but you are still breaking a federal law. There is still a risk of being prosecuted federally in Colorado if you are in possession of marijuana there, but most people are willing to take that risk. Prior to the change in the law, there wasn't much chance of getting busted, but if you did get busted it was by your local police department 99% of the time. So now, the risk of getting busted is even further diminished because you only have to worry about the slight chance of running across a federal agent. As long as you're not doing anything to get on the DEA's, BATFE's or FBI's radar, you probably have nothing to worry about.

State legalization of guns that are illegal at the federal level cannot be compared to marijuana. The major difference is that guns are purchased at federally licensed dealers that are heavily regulated and monitored by the federal government. If a gun dealer tries to sell a federally banned gun in a state that makes that gun legal, he won't be in business for long and will find himself in jail. Also, I find it hard to believe that passionate gun owners will take the risk (even if slight) of a federal felony conviction by illegally possessing a federally-banned firearm, which would prevent them from ever owning any guns again.

tulsamal

January 11, 2013, 01:37 PM

State legalization of guns that are illegal at the federal level cannot be compared to marijuana. The major difference is that guns are purchased at federally licensed dealers that are heavily regulated and monitored by the federal government.

That's true as far as it goes. But in the short term, most people are worried about what will happen to the guns and magazines that they already own I consider the whole "kicking down doors for confiscation" thing to be extraordinarily unlikely but... we'll see how unlikely nation wide registration seems fairly soon.

I even look towards Canada. They have given up on their long gun registry now but when it was going, the official line was that only about 50% of the long guns in the country had actually been registered. Out West the law was widely despised and largely ignored.

So if mandatory registration happened and I lived in Wyoming, personally I would feel much more comfortable than if I lived in the NE.

Also, I find it hard to believe that passionate gun owners will take the risk (even if slight) of a federal felony conviction by illegally possessing a federally-banned firearm, which would prevent them from ever owning any guns again.

Well.... I think we disagree on this. It's one thing to illegally possess an unregistered machine gun. Or even a sawed off shotgun. But if I legally own AR-15's and then the gov't says they are now illegal just because of their "type," I find myself wondering just how many people would turn them in for destruction. Especially if the gov't foolishly didn't offer market level compensation for them. And saying the market value is zero because of the very act of the gov't now trying to take them isn't going to fly either. If they are smart enough to give a thousand dollars for each one turned in... then we better get worried!

Gregg

Trent

January 11, 2013, 11:16 PM

[off topic material deleted]

Anyway, back to the point at hand; Wyoming. (We seem to have drifted a bit.)

If a State constitution grants citizens certain rights, and the Federal government violates those rights through legislation, is it not right and proper for the State to contest it?

We've already learned that the Second Amendment of the US doesn't apply to states, but has been selectively incorporated to a narrower function.

I don't believe the framers ever intended or foresaw the State vs. Federal contest on the constitutional level of each. When the constitution was framed the States and Federal government were more (or less) in lockstep with one another on viewpoint.

Of course, I'm not a legal scholar by any stretch, just speaking from an uneducated perspective. It doesn't seem right that the Federal Government could unilaterally strip away part of the State's constitution, for those states which explicitly define a right to keep and bear arms.

Frank Ettin

January 11, 2013, 11:40 PM

If a State constitution grants citizens certain rights, and the Federal government violates those rights through legislation, is it not right and proper for the State to contest it?...That was addressed by the Founding Fathers in the United States Constitution, Article VI, Clause 2 (emphasis added):Clause 2. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby; anything in the Constitution or Laws of any State to the Contrary notwithstanding.

In any case, there are various ways to "contest" something. While federal law may be supreme, if something is objectionable to enough people the political process offers a way to perhaps change federal law.

...We've already learned that the Second Amendment of the US doesn't apply to states, but has been selectively incorporated to a narrower function...I have no idea what you mean by "narrower function." With McDonald now in the books state governments are subject to the Second Amendment through the Due Process clause of the Fourteenth Amendment. That doesn't affect the scope or extent of the limitation imposed on state action by the Second Amendment, and such limitations will be co-extensive with those to which the federal government is subject.

...It doesn't seem right that the Federal Government could unilaterally strip away part of the State's constitution, for those states which explicitly define a right to keep and bear arms. And if a state constitution were amendment to restrict the rights of Blacks or Methodists?

Frank Ettin

January 12, 2013, 12:13 AM

...I don't believe the framers ever intended or foresaw the State vs. Federal contest on the constitutional level of each. When the constitution was framed the States and Federal government were more (or less) in lockstep with one another on viewpoint...On the other hand, a primary reason that the Constitutional Convention was convened was that the Articles of Confederation with its much looser central government was proving unworkable.

DMF

January 12, 2013, 12:22 AM

. . . you could get prosecuted under either federal or state law (but not both for the same incident).That's absolutely not true. I suggest you research the concept of "separate sovereigns." While it's unlikely due to the Petite Policy it most certainly is possible to be prosecuted by the state the federal government for the same crime, and still not violate the 5th Amendment.

Frank Ettin

January 12, 2013, 12:30 AM

. . . you could get prosecuted under either federal or state law (but not both for the same incident).That's absolutely not true. I suggest you research the concept of "separate sovereigns." While it's unlikely due to the Petite Policy it most certainly is possible to be prosecuted by the state the federal government for the same crime, and still not violate the 5th Amendment.Good catch DMF. You're absolutely right, and I missed that member's comment entirely.

tomrkba

January 12, 2013, 12:52 AM

In this case, the Feds are abusing the Commerce Clause as a means to get around the Federal Second Amendment. While Wyoming cannot repeal a Federal law, the states can create laws that contradict Federal law. Remember, the entire basis for gun control is under the Commerce Clause. The basis for it to fall under Federal Commerce is (supposed to be) based upon whether or not the item crossed a state border.

The state of Wyoming is sovereign and has the right to keep and bear arms in its constitution. They delegated power to the Federal government, but never gave it up. If a Federal law contradicts the Wyoming constitution, how is this supposed to be resolved? We look at the intent of the Commerce Clause and we find that it was never intended to be used as a means to reach into the states to control state action. The Feds even ruled that the Second Amendment does not affect state action. My best guess is that the states can prohibit Federal LE from enforcing a law inside the states; they just have not done so recently.

DMF

January 12, 2013, 01:02 AM

The basis for it to fall under Federal Commerce is (supposed to be) based upon whether or not the item crossed a state border.Well you really need to read the US Supreme Court decision in Raich v. Gonzales (2005), AND how that impacted US v. Stewart (2006) in the 9th Circuit. Both of those show your concept of the Commerce Clause is flat out wrong.

If a Federal law contradicts the Wyoming constitution, how is this supposed to be resolved?Well, it would be settled in the Courts, federal courts, and they would be ruling based on Article VI of the Constitution of the United States, specifically the "supremacy clause."

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

Which means this statement from you:
My best guess is that the states can prohibit Federal LE from enforcing a law inside the states; they just have not done so recently.Is absolutely incorrect.

Frank Ettin

January 12, 2013, 01:14 AM

In this case, the Feds are abusing the Commerce Clause as a means to get around the Federal Second Amendment. While Wyoming cannot repeal a Federal law, the states can create laws that contradict Federal law. Remember, the entire basis for gun control is under the Commerce Clause. The basis for it to fall under Federal Commerce is (supposed to be) based upon whether or not the item crossed a state border...None of which means anything unless the federal courts buy it. Why would you think they would? That line of argument didn't work for marijuana (Gonzales v. Raich, 545 U.S. 1 (2005)).

... If a Federal law contradicts the Wyoming constitution, how is this supposed to be resolved?...See the Constitution of the United States, Article VI, Clause 2 (emphasis added):Clause 2. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby; anything in the Constitution or Laws of any State to the Contrary notwithstanding.

... We look at the intent of the Commerce Clause ... It appears that the Supreme Court disagrees with your view of the intent of the Commerce Clause, and its opinion trumps yours.

... The Feds even ruled that the Second Amendment does not affect state action...No, under McDonald States are subject to the Second Amendment.

... My best guess is that the states can prohibit Federal LE from enforcing a law inside the states; they just have not done so recently. A pretty lousy and uninformed guess considering Gonzales v. Raich.

Citizen_soldier22

January 12, 2013, 01:38 AM

I'm not even going to get into this law debate, but rather just say I'm very proud of the state I live in. A couple weeks ago I wrote my Congressman and both replies were very encouraging in that they clearly agreed that restricting guns would solve nothing. I'm happy there are at least some politicians with a half decent head on their shoulders still and really hope this bill passes.

Frank Ettin

January 12, 2013, 02:10 AM

...really hope this bill passes.As do I. (Surprised you, didn't I?)

The thing is that for the various reasons I've outlined, these Firearm Freedom laws are unlikely to have any significant effect in court. But the symbolic and political value can be substantial. These laws can be powerful messages to the federal government.

It's important to understand, however, the differences between symbolically/politically useful and practical/legal useful.

JohnM

January 12, 2013, 08:42 AM

I was talking with some friends yesterday about this.
They keep up more with just what those guys we send to Cheyenne are thinking than I do.
The feeling is that this bill stands a very good chance of being passed and that if it does the Governor will sign it, the Feds be damned.
Almost half the land in our state is federally owned and controlled. Everyone feels the heavy boot of federal regulations in everything we want to do and everywhere we want to go.
Everyone in state government from the governor on down is incensed over the treatment we've received over the problems of control of introduced wolves.
Wyoming has always been a strong advocate of states rights and what we see as further infringement on 2nd Amendment rights is another blow.

RetiredUSNChief

January 12, 2013, 09:08 AM

That's absolutely not true. I suggest you research the concept of "separate sovereigns." While it's unlikely due to the Petite Policy it most certainly is possible to be prosecuted by the state the federal government for the same crime, and still not violate the 5th Amendment.

Good catch DMF. You're absolutely right, and I missed that member's comment entirely.

Since we're on the subject of good catches on prosecution...let's not forget what this also means for servicemembers.

Any violations which may be covered by the UCMJ (Articles 77 through 134) can also be prosecuted by the military as well.

Potential triple whammie.

:(

gym

January 12, 2013, 09:49 AM

I am retired, if Florida attempt to enforce any such bans, I am out of here. Already told my wife, moved here because I had to give up my carry in NYC, "no business, no license". I will leave FL if they attempt to enforce any proposed legislation.

tomrkba

January 12, 2013, 11:16 AM

Again, the Founders never intended for the system as it exists today. Macdonald modified the long standing decision stating the 2A does not affect state action. The trend is for the Feds to rule in their favor when it comes to power.

Many of the above comments seem to reflect a very negative attitude overall and a negative attitude for state power over Federal power. I find this sad since the Feds are very much against individual liberty.

Silverado6x6

January 12, 2013, 11:41 AM

Up here in Alaska it was announced a couple of days ago that federal spending on the portion of the Alaska Highway on the Canada side before entering Alaska will cease, the feds have been paying for road upkeep for many years though its all done by Canadian workers, its the roughest section of the Alcan.

Talk is its a shot across the bow knee jerk reaction to scare Alaska from resisting federal laws.

Frank Ettin

January 12, 2013, 11:51 AM

Again, the Founders never intended for the system as it exists today...How do you know?

The Founders did indeed intend the United States Constitution and federal law to be the supreme law of the land, because that's exactly what they wrote in the Constitution. The Founders did intend the judicial power of the United States to be exercised by a Supreme Court (and other, lower federal courts) and for that judicial power to extend to deciding cases under the Constitution; and they understood what that meant because many of them were lawyers.

The Founders must have expected there to be disagreements about what the Constitution meant in a particular situation and how it applied. And so they no doubt expected those disagreements to be resolved through the judicial system the Constitution established. They would have expected such questions to be resolved by the courts because, since many of them were lawyers, they understood that was how those sorts of questions had in the past been resolved under the Common Law.

...Macdonald modified the long standing decision stating the 2A does not affect state action...Yes, in 1833, as I've pointed out, the Supreme Court ruled that none of the Bill of Rights applied against the States. The Fourteenth Amendment was adopted in 1868 to change that, and the court began to use the Fourteenth Amendment in that way beginning at the end of the 19th Century. McDonald is just the latest in the more than one hundred year history of applying the Bill of Rights to the States.

...Many of the above comments seem to reflect a very negative attitude overall and a negative attitude for state power over Federal power...Nope. Many of the comments here reflect a better understanding of reality and law than you (and some others) seem to have.

...I find this sad since the Feds are very much against individual liberty. As the federal government was against individual liberty when States were routinely supporting the deprivation of individual liberty to persons of color?

The federal government isn't necessarily for or against individual liberty. It depends on who makes up the federal government. Just as whether the government of a State is for or against individual liberty depends on who makes up that government.

DMF

January 12, 2013, 12:15 PM

Since we're on the subject of good catches on prosecution...let's not forget what this also means for servicemembers.

Any violations which may be covered by the UCMJ (Articles 77 through 134) can also be prosecuted by the military as well.

Potential triple whammie.Sorry, but that is not correct. Double jeopardy would apply if a person were charged in Federal District Court of a violation of the US Code and in the military under the UCMJ, for the same criminal incident, as both are part of the federal government and are NOT separate sovereigns.

RetiredUSNChief

January 12, 2013, 03:00 PM

Sorry, but that is not correct. Double jeopardy would apply if a person were charged in Federal District Court of a violation of the US Code and in the military under the UCMJ, for the same criminal incident, as both are part of the federal government and are NOT separate sovereigns.

I don't think this is entirely accurate.

Here is some information on the matter:

The fact that an accused is subject to trial by court-martial does not eliminate the possibility of trial by another jurisdiction, either in addition to or in lieu of court-martial. Under the United States Constitution, a person may not be tried for the same misconduct by both a court-martial and another federal court. Such an act would violate the Constitution’s double jeopardy clause.

Source: http://www.ucmjdefense.com/Military%20Jurisdiction.html

While it is true that a servicemember cannot be tried for the same misconduct by both the military court and a federal court, this doesn't mean that the servicemember cannot be subsequently tried for related, or lesser included offenses.

Generally, however, jurisdiction is decided between the affected authorities with respect to the charges.

For example, let's take the case of murder.

A servicemember may indeed be tried for murder in a federal court instead of a military court. Let's say the outcome of that is "not guilty".

At this point in time, he may not be tried again for the same offense.

However, that doesn't mean that the military cannot take the servicemember to courts-martial over the following if he was not charged with them in the federal court. And some of them he CAN'T be charged with in civilian court, because the offenses apply exclusively to the military:

Art. 80: Attempts
Art. 81: Conspiracy
Art. 86: AWOL
Art. 87: Missing Movement
Art. 90: Assaulting or willfully disobeying superior commissioned officer
Art. 102: Forcing a safeguard
Art. 111: Drunken or reckless operation of vehicle, aircraft, or vessel
Art. 114: Dueling
Art. 119: Manslaughter
Art. 120a: Stalking
Art. 124: Maiming
Art. 128: Assault
Art. 133: Conduct unbecoming an officer and gentleman
Art. 134: General article ("Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.")

:eek:

Frank Ettin

January 12, 2013, 03:12 PM

This has been an interesting side trip down the road of double jeopardy, and I hope it's been useful for some people who might not understand the subtleties and complexities of the issue.

However, it is off topic for this thread, so let's discontinue the discussion please.

I hope anyone who is interested in more knowledge on the subject will make use of other available resources.

Trent

January 12, 2013, 03:36 PM

So, the verdict here (if one can be decisively found) is that...

Wyoming's posturing won't hold up to any serious test.

(Despite the fact that it tickles the heck out of me to see a State stand up to the Federal government in a pro-gun fashion.)

shinyroks

January 12, 2013, 04:32 PM

Doesn't the Arizona illegal alien mess create somewhat of a precedent for believing that local authorities are not responsible for, or allowed to enforce federal laws? In saying that it was unconstitutional for the state to create laws allowing the state to prosecute illegal aliens as a federal crime? Could this not apply to federal restrictions at other levels as well...

tomrkba

January 12, 2013, 08:01 PM

It won't hold up if the state submits to Federal jurisdiction. It all depends upon how far the legislature and the governor are willing to go. If Wyoming officials are willing to face down Federal agents, then it'll have teeth. If not, then we'll be in the same predicament where we have the Feds violating the Second Amendment using a variety of legal shenanigans.

Trent

January 12, 2013, 10:29 PM

If they pass that, and Wyoming state troopers really try to stop and arrest Federal agents serving a Federal warrant... I hope they sell tickets. I'd pay to see that show.

Frank Ettin

January 13, 2013, 06:00 AM

It won't hold up if the state submits to Federal jurisdiction. It all depends upon how far the legislature and the governor are willing to go. If Wyoming officials are willing to face down Federal agents, then it'll have teeth....What makes you think that is even an option that the governor and legislature would even seriously consider?

Remember in 1960 when U. S. Marshals escorted a black girl to school in New Orleans, Louisiana.

Remember in 1963 when George Wallace attempted to block the desegregation of the University of Alabama. He was confronted by federal marshals, Deputy Attorney General Nicholas Katzenbach, and the Alabama Army National Guard and forced to step aside.

Remember in 1963 when Wallace again attempted to stop four black students from enrolling in segregated elementary schools in Huntsville. Then the intervention of a federal court in Birmingham got the four students enrolled.

tulsamal

January 13, 2013, 11:21 AM

Remember in 1963 when Wallace again attempted to stop four black students from enrolling in segregated elementary schools in Huntsville. Then the intervention of a federal court in Birmingham got the four students enrolled.

Remember when California passed a law allowing medical marijuana? And the Feds yelled and screamed that it was against the law and said they were going to shut these places down? And yet over time the CA law became looser and looser until anybody with a headache can get a prescription? And the "Pot Clubs" are still open right now?

Remember when other states followed CA's lead and the Feds against rattled their saber? And yet those places are still open and more states are considering the same?

And finally, remember when Colorado "took the next step" and said you didn't need a prescription, you just needed to be an adult and you could carry it around, grow it at home, or ultimately even buy it from open stores? The Feds warned everybody this was illegal... and yet it is going on right now.

I'm absolutely not going to argue that state law preempts Fed law. But what matters is what is actually enforced on the ground and who does the enforcement. If CO police aren't going to arrest people for an ounce of grass in their pockets, it appears that the Feds aren't going to send in teams of Federal LEO's to arrest them either.

In the case of your examples, it is sort of the opposite sort of situation. You have a very small and discrete number of people who are having their civil rights taken away from them. So the Feds could then go into that state and escort those people directly. I live next door to Arkansas, we remember the Little Rock High School. And the South is a different animal today; you would be hard pressed to find people who think that was a bad idea.

But escorting seven teenagers to the classroom is a whole lot different from trying to police an entire state. The only comparison that makes sense to me is Prohibition. There were states and local areas where the production of moonshine was a long standing tradition and people were unwilling to give it up. And yet the local law enforcement wouldn't help. So Federal agents really did go around the country busting these people. It would be interesting to compare their manpower from ten years earlier to their numbers at the height of Prohibition. Just how many Federal agents did it take to do this? And did it actually accomplish anything since the historical record says that people continued to be able to buy alcohol during this time?

Gregg

Frank Ettin

January 13, 2013, 11:49 AM

Remember when California passed a law allowing medical marijuana? And the Feds yelled and screamed that it was against the law and said they were going to shut these places down?...That is a matter of "prosecutorial discretion." A prosecuting authority gets to decide when, where and how to enforce criminal laws. So a prosecuting authority, like the United States Justice Department may decide as a matter of policy to go easy on something like recreational or medical marijuana in a State which has legalized such, at least under some circumstances. Such a policy decision might be driven by a conclusion that enough people, particularly among an administration's constituency, find the conduct relatively benign. That might not be the case with other matters.

In any case, the feds haven't been giving marijuana a complete pass; for example see --

The fairly recent decision of the United States Supreme Court upholding federal regulation of marijuana in Gonzales v. Raich, 545 U.S. 1 (2005).

IlikeSA

January 13, 2013, 11:50 AM

Well, even if Wyoming passed the law and local or state level law enforcement enforced it: even if the federal agent got off, it still means the agent was delayed from what he was doing and had to go through a whole lot of trouble and time to get off the charge. I think that would be worth it, in my eyes.

mordechaianiliewicz

January 14, 2013, 05:40 PM

Well, truth be told here it's all about power.

Either Wyoming has the stones to tell the Feds no. And there are several other states that back them up, and say no. Or they don't.

It's also about how far either side is willing to go.

The ultimate in telling the Feds to sit and spin would be withholding tax revenue from them.

Below that is ignoring the Feds. And it tracks farther away from there.

The lowest the Feds go is simply inundating the states with agents.

The highest would be arresting state officials.

We all can bandy about regarding law here all we want, but it's a game of brinksmanship, power, and restraint. It's chess, not checkers. And the law is backseated here.

Oh, and Wyoming does not succeed here, unless atleast 12 other states join it.

Marijuana, guns, gay marriage... it's certainly going to be an interesting time we live in.

It certainly is going to be interesting. It almost sounds..............................free. Imagine that.

colorado_handgunner

January 17, 2013, 10:53 PM

Well, truth be told here it's all about power.

Oh, and Wyoming does not succeed here, unless atleast 12 other states join it.

South Carolina thought that way and tried it around 150 years ago. Didn't work out well for either side.

I hope we don't repeat history.

Sent from my DROID RAZR using Tapatalk 2

Evergreen

January 18, 2013, 02:43 AM

What makes you think that is even an option that the governor and legislature would even seriously consider?

Remember in 1960 when U. S. Marshals escorted a black girl to school in New Orleans, Louisiana.

Remember in 1963 when George Wallace attempted to block the desegregation of the University of Alabama. He was confronted by federal marshals, Deputy Attorney General Nicholas Katzenbach, and the Alabama Army National Guard and forced to step aside.

Remember in 1963 when Wallace again attempted to stop four black students from enrolling in segregated elementary schools in Huntsville. Then the intervention of a federal court in Birmingham got the four students enrolled.

Well Frank, I cannot debate you in any depth on laws, as you are a lawyer and I am not. I am finding that now the situation is so dire it is time for me to sit down and start studying the various laws and see how they apply to the different scenarios that are arising, such as the state of Wyoming resisting Federal mandates.

From an ethical and practical standpoint I can make a comment of your post. What I would like to comment about your post is this: you are discussing about the Federal government stepping in to defend the rights of American citizens during the Jim Crow era. Basically, the Federal government with a large amount of support from within the Southern States as well as a majority of the country wanted to abolish the Jim Crow era laws.

Basically, the Southern states took away the very same basic rights that the Federal government now seeks to remove from us. These are Constitutional rights. I find your examples very interesting, because it seems like the situation is totally reversed.

In the 1960s, we had the Federal government challenging states for going against the Constitution. Today, we have states challenging the Federal government for going against the Constitution. So, basically, the Federal government was working to help restore Constitutional rights for black American citizens in the South. But today, they are seeking to take away Constitutional rights from American citizens. What is easier for the Federal government to do against the State, to remove the rights of its citizens or to restore them?

Perhaps the tides have turned in this situation? Basically, the Federal government is seeking to disarm the population to the dismay of large number of American citizens. The 40% of the country who is against gun control or AWB is probably passionately against it. The 60% who supports "some kind" of gun control, probably is not so passionate about the cause. More likely it would be even in the lower 20% of people who felt as passionate to ban guns as those who are against the ban.

What I think is the Federal government will have an uphill battle that will require a considerable effort to enforce and it is facing a population that will not give up its freedom easily. Just as many people were ready to die and fight for the freedom of blacks, I feel a great number are ready to fight and defend the freedoms of the American people and their 2nd Amendment rights. We must not forget the large number of civil right activists who lost their lives and spent considerable time in prison, such as Martin Luther King Jr, for fighting for their Constitutional freedoms.

I also think Wyoming will not be alone in this, shall I call it, an "uprising". As the State government is now at odds with the Federal.

Sambo82

January 18, 2013, 03:38 AM

I would argue that it's a little unfair to compare the history of desegregation to the current atmosphere of the State/Fed showdown over the Second Amendment. Constitutionally speaking, I'd say that a State absolutely has the right to nullify unconstitutional Federal laws. Some here have cited caselaw to prove otherwise, but we need to remember that the power of judicial review was one that the Supreme Court foisted upon itself in Marbury v. Madison. So essentially the Supreme Court decided that the Supreme Court is the sole arbiter of the Constitution.

So while I believe there's an argument to be made that it's completely Constitutional for a State to nullify unconstitutional Federal laws, we should also keep in mind that the Founders didn't believe the Constitution "granted" any rights in the first place. Your rights were given to you by "nature and nature's god" and as such pre-date and exist completely independently of what any piece of paper says. They asserted their rights (quite "illegally", I might add) without a Constitution in the first place. They simply knew what their rights were and took action to redeem them.

So it all comes back to which political entity is willing to go further. I do believe that today is a highly different atmosphere concerning Federal power enforcement than it was in 1860. The North had the willpower and manpower to win a terrible war of attrition at that time. I highly doubt the Federal Government could find enough dedicated trigger pullers in today's society to carry out its bidding should it face any type of attrition rate.

JMO.

Frank Ettin

January 18, 2013, 04:03 AM

...From an ethical and practical standpoint I can make a comment of your post. ....

Basically, the Southern states took away the very same basic rights that the Federal government now seeks to remove from us. These are Constitutional rights. I find your examples very interesting, because it seems like the situation is totally reversed. ...On one hand that is correct. But the point is the lengths to which the federal government can go and has gone to enforce the Supremacy Clause.

...Some here have cited caselaw to prove otherwise, but we need to remember that the power of judicial review was one that the Supreme Court foisted upon itself in Marbury v. Madison. So essentially the Supreme Court decided that the Supreme Court is the sole arbiter of the Constitution...Judicial review is really on much more solid ground than that. Actually, it effectively flows from the Constitution.

In the Constitution the Founding Fathers assigned the federal courts the authority to decide cases arising under the Constitution (Constitution of the United States, Article III):Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.....

Section 2. The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,....

And, as Chief Justice John Marshall wrote in the decision in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803):....It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

So, if a law [e.g., a statute or treaty] be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.....

Note also that many of the Founding Fathers (the delegates to the Constitutional Convention who signed the Constitution) were lawyers. They were familiar with English Common Law (the basis of out legal system) and that for a long time it had been customary for the courts, under the Common Law, to consider the validity of such matters as the Acts of Parliament and the actions of the Crown under the rather amorphous collection of statutes, court judgments, treaties, etc., that became understood in the Common Law to be the English Constitution. And thus there was Common Law precedent, as no doubt understood by the Founding Fathers, for the invalidation of a law as unconstitutional being within the scope of the exercise of judicial power. (And English cases continued to be cites by courts of the United States for many years after Independence.)

And while John Marshall may not have been a Founding Father, he wasn't at the Constitutional Convention, he should at least be entitled to be considered a founding uncle. He was a delegate to the Virginia Convention that would ratify or reject the Constitution and, together with James Madison and Edmund Randolf, led the fight for ratification.

Frank Ettin

January 18, 2013, 04:22 AM

...Perhaps the tides have turned in this situation? Basically, the Federal government is seeking to disarm the population to the dismay of large number of American citizens...Not just the federal government. Look at the law just passed in New York and the law being introduced in Massachusetts. Consider the existing laws in Illinois, New Jersey and California -- all more draconian in some respects than federal law.

And with regard to judicial review, should the Supreme Court not have exercised its constitutionally assigned authority for the purpose of deciding Heller and McDonald?

Evergreen

January 18, 2013, 05:14 AM

Not just the federal government. Look at the law just passed in New York and the law being introduced in Massachusetts. Consider the existing laws in Illinois, New Jersey and California -- all more draconian in some respects than federal law.

And with regard to judicial review, should the Supreme Court not have exercised its constitutionally assigned authority for the purpose of deciding Heller and McDonald?
Frank, when I was talking about the State, I was referring to the state of Wyoming, not all the states in the USA, which, as you stated, have implemented even more draconian laws than even what the Federal government is attempting. In a perfect world, the Federal government should be coming in to help states abolish anti-constitutional laws, not to abolish constitutional laws, such as those guaranteed by the 2nd Amendment. I'm hoping if this insanity ends, that in fact the Supreme Court, like Heller v. McDonald will rule against the new anti-2A laws passed in New York.

I think I understand the point you are making about the Supreme Court exercising its authority over a dispute between the Federal and the State governments. To be honest, the whole Supreme Court system is something I never entirely understood. What happens if the Supreme Court itself supports an unconstitutional law? Then does it become constitutional?

What if the State of Wyoming and a majority of its populace as well as other states resist this ruling, because they believe it is unconstitutional? I do realize this is a double edge sword here and, as with Jim Crow, states can abuse power. Is the Supreme Court the only check and balance between the abuse of power from the Federal and State governments?

RetiredUSNChief

January 18, 2013, 08:50 AM

I think I understand the point you are making about the Supreme Court exercising its authority over a dispute between the Federal and the State governments. To be honest, the whole Supreme Court system is something I never entirely understood. What happens if the Supreme Court itself supports an unconstitutional law? Then does it become constitutional?

What if the State of Wyoming and a majority of its populace as well as other states resist this ruling, because they believe it is unconstitutional? I do realize this is a double edge sword here and, as with Jim Crow, states can abuse power. Is the Supreme Court the only check and balance between the abuse of power from the Federal and State governments?

If this should happen, then there is still a feedback loop whereby the citizens may affect changes. This is through the Legislative Branch. Citizens can work through their representatives to affect a change in the law or to amend the Constitution itself.

It is also possible for the Executive Branch to weigh in on such matters as well. The Executive Branch, within limits, can decide what they will and will not enforce, and how much resources in which to apply in any efforts to enforce.

It is convoluted...but it was designed to be that way in order to give each branch some means in which to balance the powers of the other two.

Frank Ettin

January 18, 2013, 12:30 PM

...To be honest, the whole Supreme Court system is something I never entirely understood. What happens if the Supreme Court itself supports an unconstitutional law? Then does it become constitutional?... The real point is that as a matter of law the Supreme Court decides if a law is constitutional. So the notion of "the Supreme Court itself supports an unconstitutional law" really has no meaning. You might not consider the law to be constitutional, but in the context of the law, your opinion doesn't count. It's the opinion of the Supreme Court that counts.

Of course, whenever a court makes a major decision that one disagrees with, the judicial system is broken and the judges corrupt. Whenever a court makes a major decision that one agrees with, the judges are great scholars (except any dissenters, who are corrupt), and our courts are the last bulwark against the machination of the political toadies bought and paid for by special interests.

There has been, and probably always will be, a huge negative reaction by a large number of people to every important to the pubic Supreme Court decision. There are plenty of folks who loved Roe v. Wade and hated Heller, and perhaps as many who hated Roe v. Wade and loved Heller.

Most of the time when folks call a decision of a court a bad decision, it isn't really because it didn't comport with the law and precedent. Most people tend to think a court decision is a bad decision because it did not achieve the result they wanted.

And sometimes when the law as applied by a court doesn't achieve a satisfactory result, a legislature can change the law -- checks and balances at work.

One fairly recent example that comes immediately to mind involves 18 USC 922(q), the federal Gun Free School Zone Act. The U. S. Supreme Court ruled that the law as originally enacted was unconstitutional (United States v. Alfonso Lopez, Jr., 514 U.S. 549 (1995)). Thereafter, Congress reenacted the law revised in a manner intended to overcome the objections of the Supreme Court.

More recently there was the case of Kelo v. City of New London, 545 U.S. 469 (2005). It was a ruling on a technical point of eminent domain law (specifically involving the "takings" clause of the Fifth Amendment applied to the States through the 14th Amendment and the meaning of "public use"). The result was found to be unsatisfactory by many. As a consequence, the legislatures of 42 States revised those States' eminent domain laws to avoid a Kelo result.

And the real importance of understanding this is to help us be sure to properly focus on the true issues confronting us. Folks toss around "it's unconstitutional" far too casually whenever they think something the government has done is wrong, unwise, bad policy or they just don't like it. However, the fact is that a great many improper, unwise, useless or dangerous things the government can do would be found by a court to be entirely constitutional.

If we think an action by government is bad idea or bad public policy, and if we want to try to effectively oppose that action, it's not enough to simply claim that it's unconstitutional. Maybe if we decide to take the time and spend the money we could convince a court to so rule -- or maybe not.

So we also need to be able to counter governmental process on its merits -- articulate why it is a bad idea or bad public policy. The Constitution can not assure wisdom. It is fundamentally an outer limit on conduct.

Sambo82

January 19, 2013, 01:56 AM

The real point is that as a matter of law the Supreme Court decides if a law is constitutional.

Really we're just going to keep going in circles about whether or not the Supreme Court really is the sole possessor of that power simply because they say they are (the Marbury v. Madison ruling). Many people in this nation would simply disagree. Whereas the Constitution does make the Supreme Court the highest court in the land, the idea that the Supreme Court has the sole power of judicial review is an opinion, albiet one that is currently enforced at gun point. I understand that the Constituion is based off of English Common Law as you've said, and English Common Law allows the power of Judicial Review, but quite frankly that's irrelevant concerning what the Constitution actually says.

In all actuality the Constitution is an easy read; it's not coded or beyond comprehension and yes, the Supreme Court does make rulings that are a blatant violation of it. Arguing that a man growing wheat on his own property for his own consumption qualifies as interstate commerce and thus subjects him to Federal regulation (Wickard v Filburn) is such an example. No amount of legal abstraction can erase that.

So I think it's important to understand what one is saying when they claim that a law is "Constitutional" or not. The Supreme Court may possess the power to make something "Constitutional" in the sense that they authorize Federal agents to kill or imprison a citizen for violating it, but it's not "Constitutional" in the sense that it is actually inline with or changes what the Constitution actually says. If, for example, the Supreme Court suddenly decided that the First Amendment doesn't protect a citizen against a law criminalizing speech critical of the government, that law may be "Constitutional" in the sense that the government can at the moment enforce it at the point of a gun, but it's obviously not Constitutional in the wording or intent of the First Amendment.

So there are actually two meanings of the word "Constitutional", and the point is is that a growing number of people are rejecting the idea that the Supreme Court is the sole arbiter of what really is Constitutional. If enough people wake up to that fact that their Constitutional rights have been abstracted away, there's no reason why the States cant simply assume the power that the Supreme Court has assumed and start to decide for themselves what is "Constitutional". If the power to be the ultimate arbiter of what is "Constitutional" is simply assumed and enforced at the point of a gun (which it is), why not do likewise at the State level? That's what we are seeing now.

Also, as I've said earlier, I'd like to reiterate the point that Natural Rights, vague and interpretative as they may be, exist entirely independently of the Constitution. Even if for the sake of argument Federal Laws that restrict our rights are backed by the power of a Constitution, that simply means that that Constitution is no more legitimate than those laws. If resisting those laws is "illegal" in that sense, it is no more "illegal" than what happened on the grounds of Lexington and Concord. That's the funny thing about laws; they really only exist as far as armed men have the power to enforce them. So whereas an action against a government's laws may be "illegal", it simply takes only an effective use of force to make it "legal". Call it illegal all you want; if the States have the willpower and resources to enforce these rulings, it will carry the full force of law e.g. it's suddenly "Constitutional".

Frank Ettin

January 19, 2013, 12:31 PM

Really we're just going to keep going in circles about whether or not the Supreme Court really is the sole possessor of that power simply because they say they are (the Marbury v. Madison ruling)...Under the doctrine of stare decisis the ruling in Marbury is the law. Marbury has also been around for about 210 years, so it's pretty well settled law.

...In all actuality the Constitution is an easy read; it's not coded or beyond comprehension and yes, the Supreme Court does make rulings that are a blatant violation of it...In your opinion, perhaps. But why do you have the final say on what is or is not constitutional? What about people who disagree with your conclusion that a particular decision of the Supreme Court is "a blatant violation of it"? Why are you correct and they wrong?

...The Supreme Court may possess the power to make something "Constitutional" in the sense that they authorize Federal agents to kill or imprison a citizen for violating it, but it's not "Constitutional" in the sense that it is actually inline with or changes what the Constitution actually says...And you decide what the Constitution actually says? What about people who disagree with your opinion about what the Constitution actually says? Why are you correct and they wrong?

Law (including the Constitution, which is, itself, law) does not exist in a vacuum. It exists in this, the real world, where it is used as a tool by which courts decide the outcome of disputes. Just as a musical score is just marks on paper until it is realized by the playing of it, the law derives its meaning from its application by the courts to real life matters.

...If resisting those laws is "illegal" in that sense, it is no more "illegal" than what happened on the grounds of Lexington and Concord. That's the funny thing about laws; they really only exist as far as armed men have the power to enforce them. So whereas an action against a government's laws may be "illegal", it simply takes only an effective use of force to make it "legal"....What you're talking about is the notion that "might makes right", but that has fundamentally been discarded in our society. We are a nation of laws, and we abide by laws. (And we at THR do not encourage, condone or advocate violating laws -- thus be advised that any such will not be tolerated here).

The folks at Lexington and Concord, got away with what they did only because we won.

Really we're just going to keep going in circles about whether or not the Supreme Court really is the sole possessor of that power simply because they say they are (the Marbury v. Madison ruling). Many people in this nation would simply disagree....No doubt some people do disagree. But so what?

A court's opinion on matters of law, including whether or not a law is constitutional, will affect the lives and property of real people in the real world. Your opinion on such questions and $2.00 will get you a cup of coffee at Starbucks.

You're welcome to live in your alternate universe. In the meantime, here in the real world courts are making rulings and causing things to happen.

Sambo82

January 19, 2013, 11:35 PM

In your opinion, perhaps. But why do you have the final say on what is or is not constitutional? What about people who disagree with your conclusion that a particular decision of the Supreme Court is "a blatant violation of it"? Why are you correct and they wrong?

I would ask the same question of the Supreme Court. If their sole reason is stare decisis then their sole reason is really "because we say so". The fact of the matter is, is that they weren't granted the power of judicial review in the Constitution, they just assumed it. Why are they correct and I am wrong, other than they just say so?

What you're talking about is the notion that "might makes right", but that has fundamentally been discarded in our society.

(And we at THR do not encourage, condone or advocate violating laws -- thus be advised that any such will not be tolerated here).

Let's be clear on one thing; the Law only has power so far as it can reach with violence, so apparently might does "make right". For better or worse, that's the nature of the beast. If I place an M16 bolt and FCG in my Ar 15, men with guns will utilize force and either A: kill me or B: take me to prison. So I reject the claim that I am the one advocating violence and you, as a proponent of this system, are not.

I would also like to point out again that the United Kingdom is a nation of laws also. The actions of the Founders were in effect, illegal. They, as a minority within a larger Empire, chose Natural Law over the laws of their nation. I'm not advocating violence, just a recognition that the very laws of this nation were founded upon a rejection of oppressive laws.

Your opinion on such questions and $2.00 will get you a cup of coffee at Starbucks.

Opinions are alot more valuable than that if they are shared en masse which, at least according to the OP's news article and others across the nation, seems to be the case.

You're welcome to live in your alternate universe. In the meantime, here in the real world

Again, this nullification movement and the threat of various state and local law enforcement agencies to impede or arrest Federal agents who attempt to carry our gun control measures, is an ongoing process. Here, in the real world. As has been the case throughout history, that lawyers and officials are pontificating within a courtroom means absoultely nothing past the point that those decisions can be carried with violence. That State and local officials, at least by their words, seem poised to disallow said violence within their borders, essentially voids all of the stare decisis arguments.

aeriedad

January 19, 2013, 11:37 PM

A court's opinion on matters of law, including whether or not a law is constitutional, will affect the lives and property of real people in the real world. Your opinion on such questions and $2.00 will get you a cup of coffee at Starbucks.

You're welcome to live in your alternate universe. In the meantime, here in the real world courts are making rulings and causing things to happen.

Sambo82 presented a very well-reasoned argument and refrained from personal attacks. I happen to agree with his assessment, and your response did little to change that. In my opinion, your veiled personal attack at the end of your reply only indicates Sambo's arguments are particularly strong. I learn a lot from reading THR, but your arrogance is a little off-putting.

You rightly point out that our society rejects the principle of "might makes right," but then you also tell us we're in an alternate universe for objecting to the Judicial Branch's expansion of Federal power (a.k.a., might makes right). It's true that Common Law informed the Founders during the Constitutional Convention, but many of the Founders were also strong proponents of Natural Law. It's been my observation that most of your opinions here tend to emphasize the Common Law angle and generally overlook Natural Law. I think when most people say something is unconstitutional, they are thinking of the Natural Law aspects of the Constitution, and the Supreme Court (behaving like the pseudo-political body it is) makes decisions more according to Common Law than Natural Law.

It seems, then, that Common Law tends to encourage the principle of "might makes right," and Natural Law tends to discourage it.

jungle

January 20, 2013, 12:03 AM

There are a lot of states and the Federales ignoring the law of the land.

Sanctuary cities ignore immigration law, Feds ignore immigration law, states are making their own drug laws outside federal law, Fed gun running to Mexico, congress has not passed a budget in four years, cities and states continue to ignore Heller and so on.

A lot of selective enforcement is going on.

I think we are going to see many more states part with federal law on several key issues in the future.

I don't think this will get to the point of open warfare, but it is a trend that cannot be denied.

Jury nullification is also an interesting and important concept, you may want to read a little about it prior to your next jury duty. Chances are, you will never be invited to serve on a jury if you mention it prior to trial.:D

Right now many cities and states are ignoring federal law, and for that matter so are the feds.

Never forget, as Chairman Mao was fond of saying, that all political power comes from the barrel of a gun. That is still true in every country in the world.

Frank Ettin

January 20, 2013, 12:42 AM

...You rightly point out that our society rejects the principle of "might makes right," but then you also tell us we're in an alternate universe for objecting to the Judicial Branch's expansion of Federal power (a.k.a., might makes right). It's true that Common Law informed the Founders during the Constitutional Convention,...Our legal system is as it is. It represents at this point several hundred years of evolution. It continues to evolve.

If you, or anyone else, finds our systems unsatisfactory, our system itself provides various means to change it. You're welcome to pursue those avenues of change if you wish.

...The fact of the matter is, is that they weren't granted the power of judicial review in the Constitution, they just assumed it. Why are they correct and I am wrong, other than they just say so?...The Supreme Court was assigned by the Founding Fathers in the Constitution the judicial power of the United States, and that judicial power, as assigned by the Founding Fathers, extended to cases arising under the Constitution.

Judicial power involves the deciding of disputes. Doing so in the exercise of judicial power involves applying the law to the matter in controversy to decide the outcome. When the law applicable to the matter involves both statute and the Constitution, exercising judicial power to decide the dispute necessarily involves judicial review. As Mr.Chief Justice Marshall put it in Marbury:....It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

So, if a law [e.g., a statute or treaty] be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case...

Judicial review effective flowed naturally from the application of Common Law (the foundation of our legal system) principles in the natural course of the exercise of judicial power assigned to the federal courts by the Founding Fathers in the Constitution. Judicial review was not pulled out of the air by Marshall. It's application was necessary to the deciding of the case then before the Court.

As to the reasons you are wrong, there are a couple. First, the Founding Fathers did not assign to you the judicial power of the United States.

Second, others may disagree with you. What then would make you right and them wrong? Between you and someone who disagrees with you, how will it be decided who is correct. Are you now suggesting that the matter be settled by mutual combat, perhaps?

Indeed a function of the courts is to decide that sort of disagreement.

...For better or worse, that's the nature of the beast. If I place an M16 bolt and FCG in my Ar 15, men with guns will utilize force and either A: kill me or B: take me to prison. So I reject the claim that I am the one advocating violence and you, as a proponent of this system, are not....Except you reject the rule of law as it exists under our system and instead would place your judgement above that of our courts and legal processes.

billinms

January 20, 2013, 02:39 AM

As to the arguement about whether the states or the feds possess 'the' power, one should read the constitution.

The last article(6 ?) says that the states can petition Congress for a Constitutional Convention (2/3 of said states doing so). In the past, when the feds made a law completely repugnant to the people, the states started a petition for a constitutional convention and when the number of states reached close to the 2/3s required the federal government backed off. I know of at least two times this has been done in the past.

They had no choice cause if a convention had been called there would have been no limit on what the states could do to the nat'l government, even abolishing or restructuring it or perhaps even rewriting the Constitution itself.

And from the way things are going with our out of control government it would not surprise me if it happened soon. The states put the federal gov't together and can abolish it if necessary. It also would not surprise me if this were being bandied about, in private, even now.

BTW if the states petition Congress for a convention, Congress is required to issue the call and each state gets one vote no matter the population.

So there!

Frank Ettin

January 20, 2013, 03:14 AM

...The last article(6 ?) says that the states can petition Congress for a Constitutional Convention (2/3 of said states doing so). In the past, when the feds made a law completely repugnant to the people, the states started a petition for a constitutional convention and when the number of states reached close to the 2/3s required the federal government backed off. I know of at two times this has been done in the past....It's actually Article V (emphasis added):The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;...An example of how the system does provide means for change. And an example of how States can politically influence the actions of the federal government.

thatwatkinsboy

January 20, 2013, 03:30 AM

Okay, I have read many posts on THR in the past, but this one has convinced me to register. In doing so, I have found a couple of things I find to be pertainent to some of the posts in this discussion.
I would like to direct your attention to a couple of statements made within "THR Forum Rules". #4- "Attack the argument, not the arguer" and my personal favorite, within "A note on FREE SPEECH" "The First Amendment is greatly respected here on The High Road, as are all other Amendments that the Second Amendment defends".
That being said, I find it odd to be so quick to taboo the idea of defending your rights by use of the Second Amendment. Just food for thought...
Now to my actual point. I think we have avoided the obvious here. It seems to me that the Supreme Court does, in fact, have the duty to decide whether something is or isn't "Constitutional"... That being said, the constitution does not give them the authority to "make" things "Constitutional". That task was completed by the founding fathers when they drafted the Constitution. Their job is to use the Constitution as a set of guidelines to determine the ruling of any given case, not to use their position to label something "Constitutional" or "Uncontitutional" under their own judgement without respect to the Constitution. In other words, it is their DUTY to make sure that the simple set of rules laid out within the text of the Constitution are followed to the letter, not their right to somehow rule over it.

billinms

January 20, 2013, 03:33 AM

" Concerning Article 5 of our Constitution"

Thanks, Frank. I was too lazy to get up at this late hour and

check for myself.:)

Frank Ettin

January 20, 2013, 03:49 AM

...I find it odd to be so quick to taboo the idea of defending your rights by use of the Second Amendment...Welcome to The High Road.

Please do understand that as -- ...an online discussion board dedicated to the discussion and advancement of responsible firearms ownership...it is not acceptable here to condone, encourage, or advocate illegal actions or the use of violence for social or political change. I hope you understand that we are serious about that.

...It seems to me that the Supreme Court does, in fact, have the duty to decide whether something is or isn't "Constitutional"... That being said, the constitution does not give them the authority to "make" things "Constitutional"... And that still begs the question of who decides that.

The bottom line is that in our legal system questions of constitutionality as a matter of law are the province of the federal courts, and ultimately the Supreme Court.

Your views might motivate your political activities. But your views do not affect the ruling of the courts.

Evergreen

January 20, 2013, 04:47 AM

Sorry, I've lost track of the debate a little and need to reexamine the posts on the thread. I appreciate the information you are contributing Frank as it is helping educate me a lot about the government. I never knew how being a supporter of the RKBA would force me to learn so much about how our government works. I remember studying about some of this

Anyway, a disturbing article about a Supreme Court Justice who decided she was above the very law she judges:
http://www.detroitnews.com/article/20130120/METRO/301200310/Michigan-Supreme-Court-Justice-Hathaway-expected-plead-guilty-bank-fraud?odyssey=tab%7Ctopnews%7Ctext%7CFRONTPAGE

Looks like the Democrat Justice (soon to be ex-Justice) Diane Hathaway decided to get involved in real-estate fraud and mondey laundering or something of the sorts. Most likely she will be serving some time in prison for these actions. Obviously, she won't be serving as much time as other people would, considering her position in the government.

This goes back to my original question. What if rogue Supreme Court justices like her, make a decision that goes against our Constitution. Obviously, this lady committed illegal acts of bank fraud that are illegal and most likely unconstitutional in one way or another. Well, it would be very hard to justify or defend the act of "theft" from a constitutional standpoint.

Considering this infallible criminal could have been one of those to judge the rights of the American people of being constitutional or not, I have my share of reservations and fears.

I just wanted to bring this point up. I know I need to scan through your other posts in the thread, as you provided a wealth of information on the subject. I'd be interested to hear your take though on people like Supreme Justice Hathaway and your feelings of a person like her judging our 2A rights.

thatwatkinsboy

January 20, 2013, 05:04 AM

My point is not to condone violence, nor was that the aparent point of the original comment which brought about the "might makes right" reply. The point is that in this websites own rules, the statement is made; "... as are all other Amendments that the Second Amendment defends". How, do you presume, the Second Amendment acts to defend those rights?
As for my views factoring into supreme court decisions, of course they don't. That is the point. No ones personal beliefs or view should effect said rulings. They should be determined as to how they align with the limits as laid out in the Constitution.

Art Eatman

January 20, 2013, 12:07 PM

The Second Amendment just sits there. People who believe that it does mean RKBA by individuals defend it against a collectivist interpretation.

However, a beginning in understanding the BOR is provided by a reading of the Preamble.

Frank Ettin

January 20, 2013, 01:59 PM

...a disturbing article about a Supreme Court Justice who decided she was above the very law she judges:
http://www.detroitnews.com/article/20130120/METRO/301200310/Michigan-Supreme-Court-Justice-Hathaway-expected-plead-guilty-bank-fraud?odyssey=tab%7Ctopnews%7Ctext%7CFRONTPAGE...For clarification, she is not a justice of the United States Supreme Court. She is a justice of the Supreme Court of Michigan.

But dishonest people crop up in every profession.

...What if rogue Supreme Court justices like her, make a decision that goes against our Constitution. ...

Considering this infallible criminal could have been one of those to judge the rights of the American people of being constitutional or not, I have my share of reservations and fears....First, no one said that a judge is infallible. Judges are human like the rest of us. The legal system has a variety of protections, as do many other professions and callings.

Becoming a judge or justice is a long and fairly arduous process in which one is continually under the scrutiny of peers, subordinates and superiors. To be a judge, he must convince enough other people along the way that he is suitable. One must be successful and well thought of by those with whom he comes into professional contact over a long period of time. At any level of a state or the federal judiciary a judge or justice is under the eyes of others.

Also, any significant decision of a court of appeal must be made by a number of justices. It takes four Justices of the U. S. Supreme Court to decide to hear a case, and five concurring in a result.

Things get decided in court through an elaborate process in which multiple professionally qualified people participate, including legal counsel of the parties to the matter.

All of this is another system of checks and balances. Of course no system designed by humans is immune from error, but a system with multiple feedback/governing processes can go a long way to minimize the error. And bad apples tend to ultimately be found out.

Still, perfection will be achieved only in heaven.

We're getting very off topic. So from here forward let's try to stay focused.

Duckdog

January 20, 2013, 03:40 PM

I think it's clear that the states that are passing these laws against the federal laws, or proposed laws, are drawing a line in the sand. This has become more than one rogue state straying from the path of the federal government. There are now more states and counties jumping on that ship.

I think that the next few months will be very interesting and will end up defining certain rolls in the government.

So what is the likely result, in the real world? The linked article in the OP tells us that at least one WY State Senator believes the Tenth and Second Amendments support the Constitutionality of the proposed bill.

One of the bill’s co-sponsors, Wyoming State Senator Larry Hicks, told The Washington Examiner that this type of legislation sends a message to the federal government in Washington D.C.

Citing the Tenth and the Second Amendments, Hicks asserted that the legislation was Constitutional, adding that he fully expected it to pass in the Wyoming state legislature....

The problem with that is that the constant expansion of federal power has rendered the Tenth Amendment almost meaningless. All members of the Executive, Legislative and Judicial branches enter office by an oath to uphold the Constitution, yet all three branches routinely violate the plain meaning of the Tenth Amendment. The Supreme Court easily justifies such violations by Common Law or by deferring to the Judicial or Executive's Constitutional powers. The Tenth Amendment is barely a speed bump once the federal government fancies any new limit to our liberty.

So, again, what is the likely result should the proposed WY bill pass? Does a state have the power to arrest and charge federal agents for attempting to enforce federal laws that conflict with state laws? Will it really come to that, or is this purely symbolic?

Sambo82

January 20, 2013, 08:50 PM

When the law applicable to the matter involves both statute and the Constitution, exercising judicial power to decide the dispute necessarily involves judicial review. As Mr.Chief Justice Marshall put it in Marbury:

Frank, once again you are citing Supreme Court decisions to argue that the Supreme Court is the sole arbiter of what is Constitutional. I hope that you understand the circular nature of this argument.

Also, you have made the argument that based off of the judical powers proscribed in Article III of the Constitution, and based off of the history of Common Law, it is reasonable to, as the Supreme Court has done, assume that they possess the sole power of judical review. Even if that is the case, what if this reasonable assumption leads to unreasonable applications of the Constitution?

Let me give you a completely plausable example. Let's say that the Democrats sweep the Congressional elections in 2014, and shortly thereafter another shooting happens. This leads to a UK style de facto gun ban. What should we do? Should we turn in our firearms and hope that the Supreme Court rules in our favor? What if due to Scalia and Kennedy retiring or passing away, the Supreme Court upholds the ban? Sure it would be unreasonable according to the precepts of stare decisis and the actual wording of the Second Amendment, but the Supreme Court ruling contrary to precident is in itself not without precident.

So honestly, tell me what we do then. Would we sit back, accept the ruling and say "gee, we've been interpreting the Constitution wrong for 220+ years"? You've brought up the point that we can elect new national legislators, but if that truly is our only recourse, if we are in effect a national democracy and the Federal Government and the Federal Government alone dictates what power the Federal Government has, why even bother with the Constitution? It is especially curious why we would have State Constitutions or legislators. You have also brought up the fact that the States can ammend the Constitution, but what value would that be if the Supreme Court can then tell the States what their Amendment really meant?

Frank, where does that leave us? Are we to ignore our Natural Rights simply because, as you put it; "Our legal system is as it is. It represents at this point several hundred years of evolution"? As I have said before, the UK had at the time of the American Revolution a legal system much older and more "evolved" than our own, and yet our Founders cast it off in favor of their Natural Rights. Our legal code in itself was built upon rebellion, so one can argue that that precident has been set.

So to summarize; is it still reasonable to assume that the Supreme Court weilds absolute power of judical review (despite said power not being mentioned specifically in the Constitution), IF said power produces unreasonable results? Is it really reasonable if it produces an unreasonable application of the Constitution? And if we still assume that it is reasonable in this context i.e. that oppressive laws are Constitutional, does that mean that we should tolerate these laws in spite of Natural Law?

I would argue no to all these cases. And apparently according to these movements, a large portion of the People would agree with me.

aeriedad

January 20, 2013, 09:20 PM

^^^ While I agree with you here, Sambo, the thread will be locked if we don't stay on the OP's topic. I'm hoping to continue the discussion and see what answers THR members may have for my questions.

Evergreen

January 20, 2013, 10:32 PM

Or, considering the importance of the discussion the posts can be moved into a separate thread? Although, I have to say, the discussion isn't entirely off-topic, although it has more to do with general State vs Federal or People vs Federal rather than the state of Wyoming vs Federal.

joeschmoe

January 20, 2013, 11:04 PM

That and $2 will buy you a cup of coffee. Symbolic, but not worth the paper it's printed on.

goon

January 20, 2013, 11:41 PM

Joeschmoe - I disagree. In terms of a protest, this is worth at least as much as the dollar or so it costs me to send a letter to my representative.

joeschmoe

January 21, 2013, 12:52 AM

Stamp is only 45 cents.

Extra shot of esspresso is usually 50 cents.

zxcvbob

January 21, 2013, 01:13 AM

I don't know that they actually real letters (the excuse is "anthrax") Do you think a postcard might be better? And it saves you a few cents postage

Frank Ettin

January 21, 2013, 01:20 AM

So what is the likely result, in the real world? The linked article in the OP tells us that at least one WY State Senator believes the Tenth and Second Amendments support the Constitutionality of the proposed bill....So a politician thinks a bill he supports is constitutional. Is that a surprise? What does it really mean? No doubt Feinstein believes the bill she has been talking about introducing is constitutional (with which you no doubt disagree). And no doubt Obama thinks the elements of his gun control agenda are constitutional as well. And I'm sure that District of Columbia officials believed that their gun control law would survive Mr. Heller's constitutional challenge.

All sorts of beliefs and disagreements about the constitutionality of this law or that law. How to resolve them? Where will they end up? The answer of course is in court where such things are finally decided.

And let's not kid ourselves that every politician introducing legislation or supporting legislation necessarily expects that legislation to be enacted or even to pass muster in a court challenge. A lot of that sort of thing is performance art for their constituencies or part of a larger, political strategy. Politics, often called the art of the possible, can be a chess game; and any particular move may not be what it seems.

...The problem with that is that the constant expansion of federal power has rendered the Tenth Amendment almost meaningless. All members of the Executive, Legislative and Judicial branches enter office by an oath to uphold the Constitution, yet all three branches routinely violate the plain meaning of the Tenth Amendment. The Supreme Court easily justifies such violations by Common Law or by deferring to the Judicial or Executive's Constitutional powers. The Tenth Amendment is barely a speed bump once the federal government fancies any new limit to our liberty... Let's assume for the sake of argument that your assessment is correct. How would you propose to "fix" it. A frontal assault through a direct court challenge? A constitutional convention to clarify the Constitution (and which would effectively put everything on the table and open everything in the Constitution to change)?

And how sure are you about your assessment? How have you validated it or tested it?

So, again, what is the likely result should the proposed WY bill pass? Does a state have the power to arrest and charge federal agents for attempting to enforce federal laws that conflict with state laws? Will it really come to that, or is this purely symbolic? If it were to come to a state LEO arresting a federal agent for attempting to enforce federal law, my professional opinion is that the question will be answered against the State by a federal court. Do you really think that the State would at that point use force to defy the order of the federal court?

On the other hand, the Wyoming law and similar laws already enacted or being consider by other States do convey a political message. Remember, we're playing chess and every move isn't always what it seems.

Frank, once again you are citing Supreme Court decisions to argue that the Supreme Court is the sole arbiter of what is Constitutional. ...And you continue to weave elaborate, gossamer tapestries of empty rhetoric that have nothing to do with the way things actually happen in real life.

...Also, you have made the argument that based off of the judical powers proscribed in Article III of the Constitution, and based off of the history of Common Law, it is reasonable to, as the Supreme Court has done, assume that they possess the sole power of judical review. Even if that is the case, what if this reasonable assumption leads to unreasonable applications of the Constitution?...I make that argument because that view is supported by over 200 years of law built upon that foundation. We are in fact there, and my analysis describes in part how and why we are there.

As to "unreasonable applications of the Constitution", that is your opinion. Other people no doubt disagree with you. And to be specific, I reject your opinions.

...Let me give you a completely plausable example. Let's say that the Democrats sweep...Arguments based on hypothetical are specious. You can construct a hypothetical any way you want to support your conclusions. I don't play that game.

...Frank, where does that leave us? Are we to ignore our Natural Rights simply because, as you put it; "Our legal system is as it is. It represents at this point several hundred years of evolution"?...You tell me. You apparently have your own solution. What is it?

...So to summarize; is it still reasonable to assume that the Supreme Court weilds absolute power of judical review (despite said power not being mentioned specifically in the Constitution), IF said power produces unreasonable results?...Unreasonable to whom? To you? What if it's unreasonable to you but reasonable to someone else? Your "unreasonable" might well be someone's "reasonable."

As I noted in post 66:...whenever a court makes a major decision that one disagrees with, the judicial system is broken and the judges corrupt. Whenever a court makes a major decision that one agrees with, the judges are great scholars (except any dissenters, who are corrupt), and our courts are the last bulwark against the machination of the political toadies bought and paid for by special interests.

There has been, and probably always will be, a huge negative reaction by a large number of people to every important to the pubic Supreme Court decision. There are plenty of folks who loved Roe v. Wade and hated Heller, and perhaps as many who hated Roe v. Wade and loved Heller.

Most of the time when folks call a decision of a court a bad decision, it isn't really because it didn't comport with the law and precedent. Most people tend to think a court decision is a bad decision because it did not achieve the result they wanted.
...

Lost Sheep

January 21, 2013, 03:53 AM

If Wyoming passed the proposed legislation it would be purely symbolic because a state cannot nullify a federal law.

If Wyoming was really serious about fighting any kind of weapon ban by the federal government, it would be much more successful if it set up an official Wyoming militia in which all citizens are members and expected to own and maintain suitable "assault" weapons for the defense of the state. Then Wyoming could sue the federal government and claim that the federal ban is preventing it from maintaining a state militia.

Even better would be a law that allowed any qualifying (i.e. age, no criminal background, etc.) person to take an oath and be made deputies in some kind of state citizen police force. That way they would immediately qualify in the "exceptions" portion of a federal gun ban.
I like it.

Lost Sheep

aeriedad

January 21, 2013, 11:51 PM

All sorts of beliefs and disagreements about the constitutionality of this law or that law. How to resolve them? Where will they end up? The answer of course is in court where such things are finally decided.

Of course the courts decide these things. But there is such a thing as objective truth, and courts are not immune to political considerations or public opinion. Thus, "court truth" (aka, Common Law) and objective truth (aka, Natural Law) are very often two things. In Orwell's 1984, Obrien did finally convince Winston that 2 and 2 are 5, but he didn't convince me.

And let's not kid ourselves that every politician introducing legislation or supporting legislation necessarily expects that legislation to be enacted or even to pass muster in a court challenge. A lot of that sort of thing is performance art for their constituencies or part of a larger, political strategy. Politics, often called the art of the possible, can be a chess game; and any particular move may not be what it seems.

Exactly. That's why I ask, "What happens next?" It seems that WY is really just trying to send the message that the federal gov't should be careful not to overstep. But I'm not sure that's the case; they may be seriously challenging federal authority. In the world of objective truth, Natural Law and the Tenth Amendment, I think they have a strong case, but in the world of Common Law they'll probably lose. In either case, the feds do have to consider their next steps carefully (in my opinion).

Let's assume for the sake of argument that your assessment is correct. How would you propose to "fix" it. A frontal assault through a direct court challenge? A constitutional convention to clarify the Constitution (and which would effectively put everything on the table and open everything in the Constitution to change)?

While I hope it never comes to that, I fear that we are on the road to serfdom (yes, Frieidrich Hayek's book) and the only plausible escape is a constitutional convention. If it comes to that, the union may be lost, but freedom for many could be restored. Or, as you note, we could lose a great many of our freedoms to an even more powerful government. But if we do, it would be because today's so-called leaders do not have the same commitment to Natural Law as that of our Founders in the eighteenth century. I agree that is not a risk worth taking at this point, though I fear it may one day come to that. Even scarier is the unstoppable expansion of government power and the slow, silent, inevitable death of liberty without even the prospect of survival that a constitutional convention could deliver.

And how sure are you about your assessment? How have you validated it or tested it?

At the risk of taking us WAY off-topic, consider the Patient Protection and Affordable Care Act of 2010 (aka, Obamacare). The Supremes said it was a tax, and the power to tax belongs to Congress, and the Solicitor General argued before the Court both that it was and was not a tax, and during the run up to the bill's passage the president insisted that it was not a tax. Expansion of federal power, whether by Legislative, Executive or Judicial overreach, is as natural a force as gravity. The Court's decision on the two dozen-plus state challenges to the PPACA last June reflected a scary propensity toward expanding federal power. The quaint eighteenth century reservation of people's and state's rights expressed in the Tenth Amendment seemed not to matter at all. Yes, it is the Supreme Court's proper role to determine issues of Constitutionality, but its over-reliance on Common Law and deference to the Legislative and Executive branches gives it plenty of latitude to ignore objective truth and the plain meaning of a legal document like the Bill of Rights. As important a tradition as Common Law is to law and order, there would have been no Constitution or Bill of Rights without the Founders' understanding of Natural Rights as expressed by John Locke.

(I could spend the time on research to find other examples, but I think the PPACA is recent enough to need no background explanations, even if it is a bit off-topic. I went there only because you asked me to support my assessment that even the courts are often willing to expand federal power, no matter what the plain language of Tenth Amendment seems to mean to most Americans.)

If it were to come to a state LEO arresting a federal agent for attempting to enforce federal law, my professional opinion is that the question will be answered against the State by a federal court. Do you really think that the State would at that point use force to defy the order of the federal court?

Maybe. Maybe not today, but it could come to that. Maybe in my lifetime (I'm 43), or maybe in that of my children or grandchildren. But the natural ebb and flow of liberty is undeniable, even if less predictable than the tides. I can tell you that I hope we never get to that point. War is hell, and I want better for my family and for my country. Still, the tides look scary, and they bear watching.

On the other hand, the Wyoming law and similar laws already enacted or being consider by other States do convey a political message. Remember, we're playing chess and every move isn't always what it seems.

Yep. So, in your professional opinion, is WY's chess move here (should the bill pass) reasonable, or completely unjustified? What is the federal gov't's likely response?

Sambo82

January 22, 2013, 12:23 AM

And you continue to weave elaborate, gossamer tapestries of empty rhetoric that have nothing to do with the way things actually happen in real life.

As to "unreasonable applications of the Constitution", that is your opinion.

I'm willing to bet that if I asked the question; "Should the Federal Government, under their Enumerated Power to regulate interstate commerce, be able to regulate the food you grow on your own property for your own consumption" that 90+% of people would answer "no". Legal abstractions notwithstanding, that power is indeed unreasonable under any candid reading of the Constitution.

And are Supreme Court decisions reasonable when they contradict earlier decisions? If stare decisis is to be the holy grail of why the Supreme Court is allowed the power to be the sole arbiter of the Constitution, what about when they don't follow that precept, as they sometimes fail to do?

Arguments based on hypothetical are specious. You can construct a hypothetical any way you want to support your conclusions. I don't play that game.

Fair enough. Let me simply ask plainly then; is there any action that the Federal Government could take against your liberties or civil rights that would make you advocate taking action outside of this system that you advocate? Can I assume from your arguments that there is no injustice or nefarious action that the government could perpetrate against you that would cause you to seek recourse outside of these established legal channels?

Also, since you reject my hypothetical scenerio let me ask you about a historical one; Do you believe that the American Revolution was carried out unjustly? I'm not bringing up a strawman or red herring, but asking a serious question. As the UK at the time of the Revolution possessed a justice system much older and established than ours, which was also based upon stare decisis and common law, and also possessed its own national and local legislatures, was the Founders correct in staging their Revolution? If they were so justified, why are they justified under their system, and we are not so under ours?

You tell me. You apparently have your own solution. What is it?

Well, for the record I'm not advocating violence or revolution, just wanted to clear that up. I view this entire argument as a modern extrapolation of the nullification question which, as you may recall, has had its legal and Constitutional arguments on both sides since at least the 1830's, and regrettably each resolution came down to a show of force. It's my sincere hope that as this question is being brought up again, our society is able to resolve it without calling in the troops. I don't think Americans in the 21st Century are quite as militaristic and as rash as we were in the 19th, so that gives me reason to hope.

Frank Ettin

January 22, 2013, 12:43 AM

...But there is such a thing as objective truth, and courts are not immune to political considerations or public opinion. Thus, "court truth" (aka, Common Law) and objective truth (aka, Natural Law) are very often two things...Yes, there is such a thing as objective truth -- about some things, when proven with sufficient rigor and tested by, among other things, it's ability to predict other things. Objective truth is based on data and observations, which lead to hypotheses, which are then further tested. That is the scientific method.

That sort of approach has only limited application to human society and institutions. Human society and institutions can be thought of as described by differential equations over multiple unknowns. Study some chaos theory and some complexity theory.

My focus it how things happen in the real world.

...In the world of objective truth, Natural Law and the Tenth Amendment, I think they have a strong case,...So how is your particular notion of objective truth, Natural Law and the Tenth Amendment relevant? Why should I, or anyone else, accept your notion of objective truth, Natural Law or the Tenth Amendment. The scientific test of your notion of objective truth, Natural Law and the Tenth Amendment is that it works. Show us how your notion of objective truth, Natural Law and the Tenth Amendment has worked.

...At the risk of taking us WAY off-topic,...I advise you not to take that risk if you want this thread to stay open.

Frank Ettin

January 22, 2013, 12:52 AM

...I'm willing to bet that if I asked the question; "Should the Federal Government, under their Enumerated Power to regulate interstate commerce, be able to regulate the food you grow on your own property for your own consumption" that 90+% of people would answer "no"...Your willingness to bet is not evidence. It's your contention and therefore your burden to prove it with evidence. As Carl Sagan said, "Extraordinary claims require extraordinary evidence."

...that power is indeed unreasonable under any candid reading of the Constitution...."Any candid reading" is simply another code for your opinion. Your entire argument relies absolutely on accepting your opinion of things. Others do not agree with your opinion.The courts certainly have not. And I see no reason to take your opinions seriously.

michaelbsc

January 22, 2013, 02:02 AM

Here is an opinion from the Cato Institute, obviously not a court ruling per se, that elaborates on the growing willingness of states to challenge the federal government. The full link to the PDF is near the bottom of the page. No subscription is required to download it.

This specific discussion regards the recent moves by Washington state and Colorado to legalize marijuana, not any kind of gun challenge. But Mikos (the paper's author) does explicitly state that he believes the principle is applicable to other areas.

Note that this was written well before the current melee of gun laws arose.

Now, I'm not an attorney. And I didn't stay at a Holiday Inn last night. And since none of this has been adjudicated it's simply Mikos's opinion as well. It has no rule of law.

Just food for thought.

MB

thatwatkinsboy

January 22, 2013, 04:44 AM

Frank... Since it would appear that you think that the Federal Government has everything under control, and none of us can be right unless the Supreme Court says we are, it begs the question ; Why are you a member (much less a moderator) of this site? It seems everytime a valid point is made, or valid question posed, you refer them to "the system". If the system isn't broken, then it needs not to be fixed. So why are we all talking in circles about this state (one of many) at least TRYING to do something to curb the systems apetite as it seems to be slowly, but surely, devouring our rights? And why is this conversation taking place on a site dedicated to the preservation of the Second Amendment?
As I understand at this point in this conversation this may be called "off topic", I assure you, it is not. All of these so called "off topic" comments are directly related to the reasoning used to determine the true answers to questions posed by this topic...

joeschmoe

January 22, 2013, 05:35 AM

... because this whole thread, and what Wyoming has done, is just pure speculation. No ones rights have been taken.
Gun owners have actually made huge strides in the last 10 years. The Constitution and rule of law are not dead. Most of the people claiming the system is broken don't seem to know how it works in the first place.

thatwatkinsboy

January 22, 2013, 06:59 AM

To which "huge strides" would you be referring? As far as I can see, the only meaningful change that has occured in the past decade is the expiration ofa set of "laws" and restrictions that should never have been allowed to be put into action in the first place(ie. Brady Bill). Again, before it is pointed out, this is just my humble opinion... We all are entitled to those. In case you haven't been paying attention to current events, virtually the same set of restrictions are now being proposed to be put into place again. Some of which go further than the last set of "laws"... And I seriously doubt that this time it would be for a mere 10 years. It reminds me of the old adage "One step forward, two steps back." I firmly stand behind the Constitution, and the united STATES of america. Because of this, I believe it is time to tighten the reigns on the Federal Goverment and redistribute the power back to those whom were intended to have it in the first place (for further referance check the 10th Amendment). This thread is about a state proposing to do just that. And I support them in that endeavor. I am not calling for an uprising, nor do I want anarchy or to live in a lawless land. I would venture to say that most of us don't care for war and violence. All I am saying is that this state, and others like it, are seeking legal avenues and paths ensured to them through the Constitution instead of violence. I see no sensible reason not to support such a venture.

joeschmoe

January 22, 2013, 07:24 AM

You've forgotten the landmark Heller and McDonald cases (incorporation), dozens of states have added CCW plus National Parks (signed by Obama), reciprocity for CCW, stand your ground laws.
We are in a much better position than we were 20 years ago.

Feinstien, and friends, "propose" these bills every year. Every year they don't even make it to debate or a vote.
This year will be the same as next year. DOA.

Al Thompson

January 22, 2013, 08:12 AM

As someone who is not a lawyer (unlike Frank ;)) and who is not very interested in legal stuff anyway, this looks circular.

As Joeschmoe points out, we are making strong gains. 20 years ago in my state there was no ability for the average citizen to get a CWP and other onerous restrictions. We now have shall issue CWPs and most of the restrictions are gone.

From 1994 to 2004 we had the AWB. Guess what we don't have anymore. And we have the internet now, so organizing and sharing information is at an all time high.

We didn't lose ( a bunch anyway) our 2nd A. rights over night and we won't get them back overnight, but we are way ahead of where we were 20 years ago.

Al Thompson

January 22, 2013, 08:15 AM

I'm going to preempt Art and Frank and close the thread. If they want to re-open it, their call.